The roles of the Notary
"The more notary, the less judge"
With these words the famous jurist Carnelutti defined the essence of the notary's role (and therefore his most important activity before the law).
The meaning is that the better the notary does his job - of verifying and interpreting the wishes of parties (i.e. persons) in the drafting of a contract and the drawing up of the relevant clauses in a legal manner - the less likelihood of having recourse to the judge (and in other words the less risk of the notarial document being cause for lawsuits). This is why a notary may not receive deeds expressly forbidden by the law (article 28 of notarial law) and has an obligation to be certain of the identity of the parties (article 49 of notarial law) and to ascertain in person their wishes (article 47 of notarial law).
Such obligations are particularly strict, and their non-observance entails, over and above civil responsibility, the professional responsibility of the notary (who may be suspended or in the worst case removed form practice) and may also entail criminal liability (for the offence of falsification of a public deed). A notary is a public official authorized to draw up deeds both between living persons (i.e. sales, exchanges, divisions of property, loans etc) and last will and testaments, witness them publicly, keep and issue copies, certificates (i.e. summaries) and extracts (i.e. partial copies) (article 1 of the notarial law).
A deed drawn up by a notary is a public document, because the notary is authorized to bear witness to it (hence he is a public official) As such it carries particular legal force: statements made in a notarial deed (e.g. that the document has been read to the parties, or that a person has made or signed a declaration in his presence) provides full evidence (in other words must be considered as true, even by a judge), unless falsification has been proved.
The law calls for notarial deeds for those events and contracts for which it is necessary to guarantee the maximum degree of legality in terms of identity of the parties and conformity to their wishes, because such acts are considered significant: for their social and economic content or complexity (e.g. sales, divisions of property, loans and other real-estate contracts, deeds of constitution of commercial companies and modifications to social status, constitution of associations for the purpose of becoming juridical entities, etc); for the effects they may have upon the civil status of a person (e.g. recognition of a natural child); and for the public interest in the expression of a person's will and its accurate rendering in legal language (e.g. wills, donations).
The form of the deed
The notarial deeds can be public or private documents authenticated.
The act must be drawn up by a notary, while the private writing may also be made by others (namely by anyone). The Code of ethics of notaries states that even if the notary is called to authenticate a private document prepared by others (ie, by the parties themselves or by professionals or other persons they trust) must check that the document complies with the law and corresponds to the true intention of the parties, including through the reading before it is signed. Therefore, the difference between the notary deed and the private deed has been softened. In practice, the main differences are the following: the act must be drawn up by a notary public; if it was not written personally by the Notary Public, should be read by him to the parties, who must all be present simultaneously in front of the notary. It must be written in Italian (possibly with a translation into a foreign language) and be signed by the parties and the notary at the same time, must be preserved (except in exceptional cases) in the collection of the acts of the notary and is therefore subject to the control of the conservative archive notary public. The private deed can not be drawn up by a notary, can not be read by the notary to the parties and can be authenticated by several notaries (each of which attests to the authenticity of the signatures and the identity of the parties who signed the act in his presence). In addition, the notary has no obligation to preserve it, but it can release it to the original parts. (For deed subject to advertising or commercial real estate, the Code of ethics states, however, that the notary must keep in the collection of his actions even private contracts, if the parties have not requested their return).
The code of ethics of notaries
By resolution of the National Council of Notaries n. 2/56 of 5 April 2008 was approved the text on the principles of professional ethics of notaries, published in Official Gazette no. 177 of 30 July 2008.